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FIRE President Greg Lukianoff is testifying today before the California Advisory Committee to the U.S. Commission on Civil Rights about unconstitutional discriminatory harassment policies at colleges and universities across California. The entire University of California (UC) System has already reformed its policies, seemingly in response to FIRE’s concerns, but Greg will testify that many colleges and universities in the state (including several UC campuses) still have discriminatory harassment policies that violate the rights of hundreds of thousands—if not millions—of students and faculty members.

On August 1, 2009, FIRE issued a memo to the Advisory Committee describing the problem in detail. The memo, authored by Samantha Harris, FIRE’s Director of Speech Code Research, pointed out that colleges and universities meet their Title IX and Title VI obligations to ban student-on-student harassment under the Civil Rights Act of 1964 when they use a definition of harassment no more strict and no less strict than the specific definition provided by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999): conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." That is, as properly understood and as defined by the Supreme Court, to count as harassment such conduct must be (1) unwelcome; (2) discriminatory (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "so severe, pervasive, and objectively offensive, and … [that] so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." Id. at 652.

Yet, the harassment policies of many colleges and universities, in California and elsewhere, unconstitutionally ban substantial amounts of speech that do not constitute true harassment and are in fact protected under the First Amendment to the U.S. Constitution. Not only do these policies chill speech on campus, they expose universities to expensive, embarrassing litigation—and in cases when the constitutional right is so clearly established that a reasonable administrator would know better than to violate it, those administrators that do so could be held personally liable for damages.

FIRE’s memo to the Advisory Committee pointed out that "[t]he misapplication of harassment regulations became so widespread that in 2003, the federal Department of Education’s Office for Civil Rights (OCR) … issued a letter of clarification to all of America’s colleges and universities" which stated:

Some colleges and universities have interpreted OCR’s prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.

OCR’s letter emphasized that "OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution," and concluded that "[t]here is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment." This letter, our memo stated, "forecloses any argument that federal anti-harassment law requires colleges to adopt policies that violate the First Amendment."

That’s right: the federal government already sent a letter to just about every college and university in America warning them against misapplying their harassment policies to ban protected speech—seven years ago! Most colleges and universities simply ignored it.

FIRE’s memo also provided the long, unbroken list of cases where federal and state courts consistently have invalidated harassment policies similar to policies in place at colleges and universities across California. We gave eight examples, out of many, of such policies in California. Here’s one:

CSU-Chico’s Student Judicial Affairs website refers to a form of sexual harassment in which faculty [use] "stereotypic generalizations," "[r]einforcement of sexist stereotypes through subtle, often unintentional means," and "[c]ontinual use of generic masculine terms such as to refer to people of both sexes." This policy is egregiously overbroad and threatens to have a terrible chilling effect on classroom speech. The suggestion that "subtle," "unintentional" reinforcement of gender stereotypes can constitute sexual harassment essentially forces faculty members whose courses address any issues touching on gender relations to walk on eggshells for fear of running afoul of this policy.

Chico’s Student Judicial Affairs website also maintains a list of "common forms of sexual harassment," including "sexist comments" and "humor or jokes about gender." This list explicitly includes protected expression, and threatens to punish core political expression and satire. A California federal court recently addressed this very issue in the Lopez case [Lopez v. Candaele et al., CV 09-0995 (C.D. Cal. Jul. 10, 2009)], and held that a policy prohibiting "sexist statements" was presumptively unconstitutional.

FIRE’s memo thus was timely, coming just three weeks after the Lopez decision. Then, just three weeks after that, on August 24, UC Principal Counsel Christopher M. Patti sent a memo on exactly this topic to UC General Counsel Charles F. Robinson. The gist of the six-page memo is that "[w]here public university anti-harassment policies have been challenged, courts have virtually uniformly struck them down" (3). Patti also notes astutely that "It appears that in some instances institutions have applied definitions of prohibited harassment developed for the workplace to non-workplace student conduct. Doing so can lead to problems because courts have held that the First Amendment permits public employers a much greater latitude to control the speech of their employees than to control non-workplace speech" (4; citations omitted).

Patti noted that UCLA law professor (and FIRE friend) Eugene Volokh, on behalf of the UCLA Academic Freedom Committee, had brought this matter to the attention of his office. Yet, it is hard not to see the influence of FIRE’s memo as well. By October 15, 2009, when UC President Mark G. Yudof announced to the Chancellors a new discriminatory harassment policy that closely tracked the Davis standard (dated Oct. 9), Yudof noted that the old policies had "drawn attention and criticism from both inside and outside the University community."

Meanwhile, I have seen no sign that the schools of the California State University (CSU) System or the California Community Colleges System (CCCS) have acted to reform their policies. Strangest of all, troubled Los Angeles City College, after losing in district court in Lopez (see above) and being ridiculed by the judge (PDF, 21), has decided to take its chances at the appellate level. (FIRE has weighed in on the appeal, filing an amicus brief with the Ninth Circuit in January.) I am sure Californians will be relieved to see that the college has plenty of taxpayer and tuition money to spare in order to argue that its students should have fewer rights than they actually have.

What Greg is going to testify about today is no secret. The main point is that colleges and universities in California must revise their discriminatory harassment policies to comport with the Davis standard, the First Amendment, and the California Constitution (and, for most private universities, the Leonard Law, which similarly binds them). It is not hard to do, for the UC System has already done it, at least at the level of President Yudof. It is already past time for the rest of the state to follow his lead, for every day with unconstitutional speech codes in force is a day that millions of students’ and faculty members’ rights are being violated.